Dale Bozzio v. Emi Group Ltd ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DALE BOZZIO, individually and on No. 13-15685
behalf of all others similarly
situated, D.C. No.
Plaintiff-Appellant, 4:12-cv-02421-
YGR
v.
EMI GROUP LIMITED; CAPITOL OPINION
RECORDS, LLC; EMI MUSIC NORTH
AMERICA, LLC; EMI RECORDED
MUSIC; and EMI MARKETING,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding
Argued and Submitted
June 10, 2015—San Francisco, California
Filed January 26, 2016
Before: Mary M. Schroeder, Sandra S. Ikuta,
and Morgan Christen, Circuit Judges.
Opinion by Judge Christen
2 BOZZIO V. EMI GROUP
SUMMARY*
Standing / Third-Party Beneficiary
The panel reversed the district court’s dismissal of a
complaint filed by third-party beneficiary Dale Bozzio
alleging breach of a recording contract between Bozzio’s
former band, Missing Persons, and defendant recording
companies, and remanded.
The panel held that the district court erred in concluding
that under California law Missing Persons, Inc.’s status as a
suspended corporation precluded Bozzio’s third-party
beneficiary suit. The panel further held that it could not
affirm on the ground that Bozzio waived the benefits of the
Missing Persons, Inc. contract. The panel held that Bozzio
pleaded facts sufficient to establish her standing to sue as a
third-party beneficiary on the contract between Missing
Persons, Inc. and the recording companies. Finally, the panel
held that the district court erred in dismissing Bozzio’s
complaint with prejudice because amendment may not have
been futile.
COUNSEL
Cadio Zirpoli (argued), Guido Saveri, R. Alexander Saveri,
and Carl N. Hammarskjold, Saveri & Saveri, San Francisco,
California; Robert J. Bonsignore and Lisa Sleboda,
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BOZZIO V. EMI GROUP 3
Bonsignore and Brewer, Belmont, New Hampshire, for
Plaintiff-Appellant.
Peter I. Ostroff, Rollin A. Ransom, and Michelle B. Goodman
(argued), Sidley Austin LLP, Los Angeles, California, for
Defendants-Appellees.
OPINION
CHRISTEN, Circuit Judge:
BACKGROUND
This is a breach of contract case. Dale Bozzio, front
woman of the former band Missing Persons, claims the
defendant recording companies improperly treated certain
sales of Missing Persons’s recordings—through music
download services, mobile phone mastertone downloads, and
licensing for music streaming services—as record sales rather
than revenue from licensing, and, as a result, paid the artists
a lower royalty rate than the one provided for in their
recording contracts. Bozzio is not a party to the recording
contracts she seeks to enforce, but she filed suit as a third-
party beneficiary.
The district court dismissed Bozzio’s complaint. The
court reasoned that even if Bozzio was an intended third-
party beneficiary, the contracting party, Missing Persons,
Inc., was a suspended corporation when Bozzio filed her
complaint and its suspended status prevented it from bringing
suit under California law. The district court ruled that
because Missing Persons, Inc. lacked capacity to sue, a third-
party beneficiary of Missing Persons, Inc.’s contract was
4 BOZZIO V. EMI GROUP
similarly without capacity to sue. The district court decided
that any amendment would be futile and dismissed Bozzio’s
complaint with prejudice.
Bozzio’s appeal requires us to resolve two questions:
(1) Whether the district court erred by concluding that
Missing Persons, Inc.’s suspended status precluded Bozzio’s
suit; and (2) whether Bozzio pleaded facts sufficient to
establish her standing to sue as a third-party beneficiary of
the contract between Missing Persons, Inc. and the recording
companies. We answer “yes” to both questions, and we
therefore reverse.1
I. Facts2
In 1980, Dale Bozzio (“Bozzio”), Terry Bozzio, and
Warren Cuccurullo founded the band Missing Persons.
According to the complaint, as the band’s front woman,
Bozzio “personified the sound and the look of the new wave
scene in 1980s Los Angeles.”
Capitol Records signed the band and entered into a
Personal Services Agreement with the individual artists in
1982. Their agreement provided that the artists comprising
Missing Persons would create master recordings that Capitol
1
The district court had jurisdiction pursuant to 28 U.S.C. § 1332, and we
have jurisdiction pursuant to 28 U.S.C. § 1291.
2
These facts are taken from the complaint and its exhibits. See Akhtar
v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (“When reviewing a motion
to dismiss, we ‘consider only allegations contained in the pleadings,
exhibits attached to the complaint, and matters properly subject to judicial
notice.’” (quoting Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir.
2007) (per curiam))).
BOZZIO V. EMI GROUP 5
would sell and license. In return, Capitol promised to “pay
royalties at rates ranging from 20% to 24% for sales in the
United States and Canada, and from 7% to 8% for sales in the
rest of the world.” The agreement also provided that the
artists would receive 50% of Capitol’s net royalties from
licensing, and that it would be construed in accordance with
California law.
In 1983, Bozzio and the other band members formed
Missing Persons, Inc., a California corporation, to serve as a
loan-out company through which they would provide services
to Capitol. “A loan-out corporation is a legal fiction
employed for the financial benefit of successful artists and
entertainers. It is a duly organized corporation, typically
wholly owned by an artist, the sole function of which is to
‘loan out’ the services of the artist-owner to producers and
other potential employers.” Aaron J. Moss & Kenneth Basin,
Copyright Termination and Loan-Out Corporations:
Reconciling Practice and Policy, 3 Harv. J. Sports & Ent. L.
55, 72 (2012). The form offers “limited personal liability and
beneficial tax treatment.” Id. At least initially, Bozzio served
as the president of Missing Persons, Inc.
Capitol subsequently entered into a new contract, called
the Loan-Out Agreement, with Missing Persons, Inc. The
Loan-Out Agreement substituted Missing Persons, Inc. in
place of the individual band members in the original Personal
Services Agreement and required Capitol to pay all artist
royalties to Missing Persons, Inc., not to the artists. It also
stated that Missing Persons, Inc. was to receive all contractual
benefits, and that it, not Capitol, was to pay the individual
artists all required royalties and advances. As part of the
Loan-Out Agreement, each band member executed an Artist
Declaration “as further inducement for Capitol to enter into
6 BOZZIO V. EMI GROUP
the Capitol-Company Agreement.” Bozzio’s declaration
states that she “agree[s] to look solely to [Missing Persons,
Inc.] for the payment of [her] fees and/or royalties . . . , and
will not assert any claims in this regard against Capitol.”
The music group disbanded in 1986, and, as of July 1,
1988, Missing Persons, Inc. was suspended under California
Revenue and Taxation Code § 23301 due to failure to pay
franchise taxes. The parties do not dispute that Missing
Persons, Inc. remained a suspended corporation when Bozzio
filed her complaint in this lawsuit.
II. Proceedings
In 2012, Bozzio filed a putative class action suit in the
Northern District of California. The operative complaint
alleges breach of contract and other claims against EMI
Group, Ltd., Capitol Records, LLC, EMI Music North
America, LLC, EMI Recorded Music, and EMI Marketing
(collectively, “Capitol”). Specifically, the complaint alleges
that Capitol failed to “properly account for and pay its
recording artists and music producers for income it has
received, and continues to receive, from the licenses of its
recorded music catalog for the sale of digital downloads,
ringtones (or ‘mastertones’), and streaming music.” It
requests declaratory judgment, injunctive relief, restitution,
and attorneys’ fees.
Capitol moved to dismiss Bozzio’s complaint under
Federal Rule of Civil Procedure 12(b)(6). Capitol primarily
argued that Bozzio could not file suit because she expressly
agreed in the Artist Declaration to “look solely to” the loan-
out corporation for royalty payments and promised to “not
assert any claim in this regard against Capitol.” Bozzio
BOZZIO V. EMI GROUP 7
countered that she was an intended third-party beneficiary of
the Loan-Out Agreement with an individual right to sue that
is separate from the corporation’s. According to Bozzio, the
Artist Declarations “only prohibit[] an artist from asserting a
claim against EMI when there is a dispute among individual
band members over the internal allocation and distribution of
royalties that have already been properly accounted for and
paid by the record label to the artists’ musical group or loan-
out corporation.” She further argued that the intent of the
parties in executing the Artist Declarations presents factual
questions that cannot be resolved by a motion to dismiss.
Recognizing the corporation’s suspended status, the district
court requested additional briefing from the parties on the
following question: “[S]hould plaintiff be permitted to
proceed directly against Capitol if the loan-out company that
is the party to the agreements with Capitol is a suspended
corporation?”
After supplemental briefing and oral argument, the
district court granted Capitol’s motion to dismiss. The court
did not resolve whether Bozzio is a third-party beneficiary of
the Loan-Out Agreement. Instead, the court decided that
because the contracting party, Missing Persons, Inc., was a
suspended corporation, “regardless of Bozzio’s standing to
bring claims as a third party beneficiary, she cannot sue to
enforce that agreement when the contracting corporation
would have no capacity to do so.” The court observed that
California suspends corporate powers under California
Revenue and Taxation Code § 23301 and § 23305 to induce
corporations to pay taxes and maintain good standing. It
concluded that allowing Bozzio to sue as a third-party
beneficiary of the recording contract would permit her to
“us[e] the corporate entity to contract, and gain the benefits
of the corporate form, yet [allow her] to retain the right to sue
8 BOZZIO V. EMI GROUP
as an individual, third party beneficiary even when the
corporation could not, on account of its failure to comply
[with] its corporate obligations, including its tax liability.”
The district court ruled that it would be futile to grant leave
to amend and dismissed Bozzio’s complaint with prejudice.
Bozzio timely appealed.
STANDARD OF REVIEW
We review de novo a district court’s decision to grant a
motion to dismiss. Lacano Invs., LLC v. Balash, 765 F.3d
1068, 1071 (9th Cir. 2014). We review “the district court’s
denial of leave to amend for abuse of discretion.” Id.
DISCUSSION
I. The district court erred by granting Bozzio’s motion to
dismiss on the ground that Missing Persons, Inc. lacked
capacity to sue.
Bozzio’s complaint alleged that Missing Persons, Inc. and
Capitol entered into the Loan-Out Agreement for her own
benefit and for the benefit of her bandmates, and that she is
therefore entitled to bring suit to protect her interests. The
district court held that Bozzio cannot sue on the contract
because, even if she is a third-party beneficiary to the
Agreement, the contracting party—Missing Persons, Inc.—is
a suspended corporation. On appeal, Bozzio argues that the
suspended status of the contracting corporate party is
irrelevant when the party bringing the action is a third-party
beneficiary of the contract, and the district court’s dismissal
of the First Amended Complaint on that basis constitutes
reversible error. We agree with Bozzio that the district court
erred in holding that, even if Bozzio is a third-party
BOZZIO V. EMI GROUP 9
beneficiary, she cannot bring an action while Missing
Persons, Inc. is suspended.
California law provides that if a corporation fails to pay
taxes, penalties, interests, or any liability, its “corporate
powers, rights and privileges” will be suspended. Cal. Rev.
& Tax Code § 23301. “The suspension of the corporate
powers, rights, and privileges means a suspended corporation
cannot sue or defend a lawsuit while its taxes remain unpaid.”
Kaufman & Broad Cmtys., Inc. v. Performance Plastering,
Inc., 39 Cal. Rptr. 3d 33, 36 (Cal. Ct. App. 2006); see also
Gar-Lo, Inc. v. Prudential Sav. & Loan Ass’n, 116 Cal. Rptr.
389, 390 (Cal. Ct. App. 1974) (discussing the effect of
suspension under § 23301 on a corporation’s right to sue).
In dismissing Bozzio’s complaint, the district court
concluded that, even if Bozzio is a third-party beneficiary of
the contract between Missing Persons, Inc. and Capitol
Records, she cannot sue to enforce the agreement because the
contracting party would have no capacity to do so. But the
cases cited by the district court for this proposition, Kaufman
& Broad Communities, Inc., 39 Cal. Rptr. 3d 33, and
AMESCO Exports, Inc. v. Associated Aircraft Manufacturing
& Sales, Inc., 977 F. Supp. 1014 (C.D. Cal. 1997), order
vacated on other grounds, 87 F. Supp. 2d 1013 (C.D. Cal.
1997), do not support it. Kaufman & Broad Communities,
Inc. held only that an insurance company could not step into
the shoes of a suspended corporation and litigate in its name;
rather, it had to intervene in the legal action against its
insured. 39 Cal. Rptr. 3d at 34–37. The court did not address
whether a third-party beneficiary, which has an independent
cause of action on a contract, see Cal. Civ. Code § 1559,
could bring an action for breach of contract against the
promisor when the promisee is a suspended corporation.
10 BOZZIO V. EMI GROUP
AMESCO Exports, Inc. also fails to support the proposition.
It concluded that the sole shareholder of a suspended
corporation could not bring a breach of contract claim against
a manufacturer based on a contract signed by the suspended
corporation and the manufacturer, but this conclusion was
premised on the sole shareholder’s inability to demonstrate
that it was a third-party beneficiary of the contract. AMESCO
does not answer whether the shareholder would have been
allowed to sue if the promisee had intended to give the
beneficiary such a right. 977 F. Supp. at 1016.
The parties have not cited, and we have not found, any
California case holding that a third-party beneficiary cannot
sue the promisor for breach of contract when the promisee is
a suspended corporation. Further, the California case most
closely on point supports Bozzio’s argument that Missing
Persons, Inc.’s incapacity does not bar her third-party
beneficiary suit. See Performance Plastering v. Richmond
Am. Homes of Cal., Inc. (Richmond American Homes),
63 Cal. Rptr. 3d 537 (Cal. Ct. App. 2007). Richmond
American Homes involved a series of construction claims
between a homebuilder and one of its subcontractors,
Performance Plastering. Id. at 540. Throughout the series of
claims, Performance Plastering was a suspended corporation
for failing to pay taxes. Id. at 541.
After the homebuilder received complaints about the
quality of Performance Plastering’s stucco work, the two
entered into a settlement agreement that released Performance
Plastering and its insurers from liability for claims arising
from the construction of sixty-five homes in exchange for a
cash payment. Id. Additional defective construction claims
were alleged, and the homebuilder and Performance
Plastering’s insurer entered into a second settlement
BOZZIO V. EMI GROUP 11
agreement by which the homebuilder accepted another cash
payment, dismissed Performance Plastering from all claims,
and agreed to give five-days notice to the insurer of any
potential indemnity claims. Id. A third complaint was filed
for construction defects, this time against the homebuilder,
and the homebuilder filed a cross-complaint against
Performance Plastering. Id. In response, Performance
Plastering filed a cross-claim in which it alleged that the
homebuilder’s claims were barred because it failed to give the
insurer five days notice as required by the second settlement
agreement. Id. Through the insurer, the parties entered a
third settlement agreement, reserving the “right to seek
judicial determination of the applicability and enforceability”
of the previous agreements. Id. The insurer and Performance
Plastering then sued the homebuilder for breach of contract
and declaratory relief based on the homebuilder’s violation of
those previous settlement agreements. Id.
The trial court dismissed the case because it concluded
that Performance Plastering’s suspended corporate status
prevented it from bringing suit, and the insurer had no
standing to sue as either a party or third-party beneficiary. Id.
at 542. The California Court of Appeal reversed. Id. at 545.
It held that Performance Plastering’s suspended status
rendered its contracts with the homebuilder voidable, but
because neither party to the contract had sought rescission,
the insurer had standing to sue the homebuilder for breach of
contract as a third-party beneficiary of the settlement
agreements. Id. at 544–45. Although the court did not
expressly address the question whether Performance
Plastering’s lack of capacity to sue due to its suspended status
deprived the insurer of that capacity, the court let the case go
forward, implying that such lack of capacity does not
12 BOZZIO V. EMI GROUP
necessarily deprive a third-party beneficiary of standing to
sue.
Like the insurer in Richmond American Homes, Bozzio
argues that she is a third-party beneficiary of the Loan-Out
Agreement and that the suspended status of Missing Persons,
Inc. does not bar her individual suit. Although Richmond
American Homes does not go that far, it indicates that
California courts do not consider the incapacity of the
promisee to a contract to be an absolute bar to a lawsuit by a
third-party beneficiary. See id.; Ronay Family Ltd. P’ship v.
Tweed, 157 Cal. Rptr. 3d 680, 687 (Cal. Ct. App. 2013)
(“[T]he rule that a promisor’s defense against a promisee is
also good against a third party beneficiary does not apply
when the language of the contract or the circumstances
surrounding its execution establish that the rights of the
beneficiary are not subject to that defense.”).
The district court recognized that Richmond American
Homes lends support to Bozzio’s position, but it distinguished
the case from Bozzio’s situation based on Bozzio’s
relationship to Missing Persons, Inc. The district court
reasoned that “the insurer in [Richmond American Homes]
was not closely related to the [suspended] corporation and
was not in a position to revive the corporation and pursue its
legal rights.” The court considered Bozzio’s relationship to
Missing Persons, Inc. to be dispositive:
By contrast, in this case Bozzio is directly,
though not necessarily entirely, responsible
for the suspended status of the corporation.
While the loan-out corporation here is not in
Bozzio’s sole control, she has alleged that she
is its president and the “driving force” behind
BOZZIO V. EMI GROUP 13
it. [Citing to First Amended Complaint
paragraphs 22 and 23] Presumably, she could
take action to revive the corporation.
Moreover, whether Bozzio could revive the
corporation on her own does not present a
question of fact barring dismissal, as she
contends. To the contrary, the corporation’s
and thus Bozzio’s, lack of capacity to pursue
the claims appears from the face of the
complaint.
When sitting in diversity jurisdiction, “[t]his court will
follow a state supreme court’s interpretation . . . in the
absence of extraordinary circumstances.” Dimidowich v. Bell
& Howell, 803 F.2d 1473, 1482 (9th Cir. 1986). Where the
state’s highest court has not decided an issue, “this court
looks for ‘guidance’ to decisions by intermediate appellate
courts of the state and by courts in other jurisdictions.” Id.
Here, the California Supreme Court has not decided whether
a promisee corporation’s suspended status precludes suit by
a third-party beneficiary of the contract, but in Richmond
American Homes, the California Court of Appeal suggested
that a third-party beneficiary suit may go forward
notwithstanding the promisee’s incapacity to sue. See 63 Cal.
Rptr. 3d at 544–45. Therefore, the district court erred in its
determination that a third-party beneficiary cannot state a
claim if the promisee is a suspended corporation under Cal.
Rev. & Tax Code § 23301.
We are not persuaded that Bozzio’s relationship to
Missing Persons, Inc. ends her appeal. First, whether Bozzio
“could take action to revive the corporation” does not
necessarily distinguish her from the insurer in Richmond
American Homes. California law provides that revival of a
14 BOZZIO V. EMI GROUP
corporation “may be made by any stockholder or creditor, by
a majority of the surviving trustees or directors thereof, by an
officer, or by any other person who has interest in the relief
from suspension.” Cal. Rev. & Tax Code § 23305 (emphasis
added). As an entity impacted by Performance Plastering’s
tax default, the insurer in Richmond American Homes appears
to have had “an interest” in that company’s revival and
therefore—like Bozzio—likely had the ability to apply for its
revival.
Second, no California case has decided whether a party’s
status as a former shareholder or officer of a suspended
corporation negates that party’s ability to bring suit as a third-
party beneficiary of a contract entered into by the corporation.
The district court concluded that permitting Bozzio to sue on
her own behalf would allow her to reap the benefits of the
corporate form while avoiding the consequences of Missing
Persons, Inc.’s tax default, but its analysis fails to account for
§ 23305b, a provision that expressly allows the Franchise Tax
Board to revive a corporation “without full payment of the
taxes, penalties, and interest due” if revival “will improve the
prospects for collection of the full amount due.” Cal. Rev. &
Tax Code § 23305b. This statute reflects the legislature’s
intention that certain suspended corporations may be revived
if doing so serves the state’s ultimate goal of collecting back
taxes and penalties. Considering this provision, we do not
agree that allowing Bozzio’s suit to go forward would
necessarily undermine legislative intent. As far as we know,
the State of California has not considered whether to reinstate
Missing Persons, Inc. to allow it to pursue its claim against
Capitol.
Finally, the record does not support the district court’s
finding that Bozzio has control over the defunct corporation
BOZZIO V. EMI GROUP 15
and an ability to revive it. Contrary to the district court’s
interpretation, Bozzio never alleged she is currently the
driving force behind the loan-out corporation. Rather, the
complaint alleged that—from the time the band was formed
in the 1980s, until the group broke up—Bozzio was a
“member and driving signature force” of the band. Bozzio
served as president of Missing Persons, Inc. for some period
of time, but she argued in our court that she cannot revive the
corporation under § 23305 because only Missing Persons,
Inc. can access the royalty statements and relevant records
that are necessary to calculate the amount of back taxes owed.
According to Bozzio, she cannot calculate, much less pay, the
corporation’s back taxes because she cannot access the
royalty statements. Case law applying § 23301 recognizes
that its purposes are not served “by penalizing an innocent
person or entity.” Biggs v. Cal. Ins. Guarantee Assn.,
179 Cal. Rptr. 16, 19 (Cal. Ct. App. 1981). While Bozzio is
not “innocent” in the sense that she is unrelated to the defunct
corporation, the face of the complaint does not demonstrate
that Bozzio is “directly . . . responsible for the suspended
status of the corporation.”
In light of the above, it was an error to grant the motion
to dismiss on the ground that Missing Persons, Inc. was a
suspended corporation.
II. We cannot affirm the district court on the ground that
Bozzio waived the benefits of the Missing Persons, Inc.
contract.
Even if Missing Persons, Inc.’s suspended status does not
preclude Bozzio’s suit, Capitol maintains that dismissal is
proper because Bozzio waived any right to sue
Capitol—including the right to sue as a third-party
16 BOZZIO V. EMI GROUP
beneficiary—by signing an Artist Declaration in which she
agreed that she would not “look to” Capitol for payment of
royalties:
For the express and direct benefit of Capitol,
I hereby:
...
Agree to look solely to [Missing Persons,
Inc.] for the payment of my fees and/or
royalties, as the case may be, and will not
assert any claim in this regard against Capitol
or attempt to prevent the manufacture, sale,
licensing or distribution of records
manufactured from the masters produced
under the Capitol-Company Agreement.
This language from the Artist Declaration suggests that
Bozzio waived her right to sue as a third-party beneficiary,
but other language in the Loan-Out Agreement is in tension
with that conclusion.
“Under California law, a ‘contract, made expressly for the
benefit of a third party, may be enforced by him at any time
before the parties thereto rescind it.’” Balsam v. Tucows Inc.,
627 F.3d 1158, 1161 (9th Cir. 2010) (quoting Cal. Civ. Code
§ 1559). “[A] third party beneficiary contract must either
satisfy an obligation of the promisee to pay money to the
beneficiary, or the circumstances indicate the promisee
intends to give the beneficiary the benefit of the promised
performance.” Med. Staff of Doctors Med. Ctr. in Modesto v.
Kamil, 33 Cal. Rptr. 3d 853, 858 (Cal. Ct. App. 2005).
BOZZIO V. EMI GROUP 17
Whether “the circumstances indicate that” Capitol and
Missing Persons, Inc. intended to give Bozzio “the benefit of
the promised performance” cannot be resolved on the face of
the parties’ pleadings. See id. The Loan-Out Agreement
expressly provides that Bozzio and her bandmates would
incur obligations and receive benefits, notwithstanding the
fact that they were no longer contracting parties. For
example, if Missing Persons, Inc. ceased to exist, the
individual artists were to assume its contractual obligations in
the Agreement with Capitol:
If during the term of the Capitol-Company
Agreement or any extensions, renewals or
modifications thereof, Company shall cease to
be entitled to make my services available to
Capitol in accordance with the terms of the
Capitol-Company Agreement, or if Company
shall fail or refuse to make my services
available to Capitol, I shall, at Capitol’s
request, do all such acts and things as shall
give to Capitol the same rights, privileges and
benefits as Capitol would have under the
Capitol-Company Agreement if Company had
continued to be entitled to my services, and I
shall make the same available to Capitol, and
such rights, privileges and benefits shall be
enforceable on Capitol’s behalf against me.
Further, the Loan-Out Agreement contemplates royalty
payments to individual artists:
Company [Missing Persons, Inc.] shall have
the benefit of all agreements, representations
and warranties made by Capitol to Artist in
18 BOZZIO V. EMI GROUP
the [original agreement] provided, however,
that Company shall not receive any rights
hereunder greater than those which Artist
would receive under the [original agreement]
had this document never been executed.
Company shall pay Artist all royalties and
advances required to be paid pursuant to the
Exhibit.[3]
(emphasis added). These provisions suggest the parties
contemplated that “the promisee intends to give [Bozzio] the
benefit of the promised performance.” See Med. Staff of
Doctors Med. Ctr. in Modesto, 33 Cal. Rptr. 3d at 858; see
also Prouty v. Gores Tech. Grp., 18 Cal. Rptr. 3d 178, 184
(Cal. Ct. App. 2004) (“If the terms of the contract necessarily
require the promisor to confer a benefit on a third person,
then the contract, and hence the parties thereto, contemplate
a benefit to the third person.” (citation omitted)).
Capitol strenuously argues that by agreeing “not [to]
assert any claim[s] . . . against Capitol,” Bozzio waived her
right to sue as a third-party beneficiary. Bozzio counters that
this “look solely to” clause was intended to prohibit an artist
from asserting a claim against Capitol only “when there is a
dispute among individual band members over the internal
allocation and distribution of royalties that have already been
properly accounted for and paid by the record label to the
artists’ musical group or loan-out corporation.” Nothing in
3
In the Loan-Out Agreement, the footnote to this text indicates:
“[P]rovided that such monies are paid by Capitol to Company, which
payment by Capitol shall be conditioned upon Company’s and Artist’s
performance of its material obligations hereunder and pursuant to the
Agreement.”
BOZZIO V. EMI GROUP 19
the record forecloses Bozzio’s reading of this contract
language.
We agree with Bozzio that whether she forfeited the
ability to sue as a third-party beneficiary is a fact-bound
inquiry ill-suited to resolution at the motion to dismiss stage.
See Prouty, 18 Cal. Rptr. 3d at 184 (“Whether the third party
is an intended beneficiary or merely an incidental beneficiary
involves construction of the intention of the parties, gathered
from reading the contract as a whole in light of the
circumstances under which it was entered.” (quoting E.
Aviation Grp., Inc. v. Airborne Express, Inc., 8 Cal Rptr. 2d
355, 357–58 (Cal. Ct. App. 1992)). On remand, a record can
be developed that will allow consideration of Bozzio’s claim
that she was an intended third-party beneficiary of the
Agreement.
III. Amendment may not have been futile.
Because amendment may not have been futile, it was
error to dismiss Bozzio’s complaint with prejudice. See
Sharkey v. O’Neal, 778 F.3d 767, 774 (9th Cir. 2015) (noting
that district courts are required to allow parties to freely
amend absent “undue delay, bad faith . . . repeated failure to
cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party . . . , [or] futility of
amendment” (quoting Foman v. Davis, 371 U.S. 178, 182
(1962))).
The district court dismissed Bozzio’s complaint on the
sole ground that Bozzio “cannot sue to enforce [the]
agreement when the contracting corporation[, Missing
Persons, Inc.,] would have no capacity to do so.” The court
denied Bozzio leave to amend presumably because Bozzio
20 BOZZIO V. EMI GROUP
disclaimed any ability to revive the corporation under
§ 23305, rendering any amendment futile.
Likely because the parties failed to brief the issue, the
court’s order did not take into account that California’s tax
code may allow Bozzio to revive Missing Persons, Inc.
without paying back taxes. Section 23305b provides: “[T]he
Franchise Tax Board may revive a corporation to good
standing without full payment of the taxes, penalties, and
interest due if it determines that the revivor will improve the
prospects for collection of the full amount due.” Cal. Rev. &
Tax Code § 23305b (emphasis added). An application to
revive a suspended corporation “may be made by any
stockholder or creditor, by a majority of the surviving trustees
or directors thereof, by an officer, or by any other person who
has interest in the relief from suspension.” Id. § 23305. It
appears that Bozzio is eligible to apply to have Missing
Persons, Inc. restored to good standing under § 23305b
because she is a “person who has interest in the relief from
suspension.” California may decide that revival under this
provision is consistent with its objective of securing payment
of corporate taxes because—once revived—Missing Persons,
Inc. could pursue its claims and thereby “improve the
prospects for collection of the full amount due.” See id.
§ 23305b. Because revival under § 23305b may be possible,
we cannot say that amendment was futile. The district court
therefore abused its discretion by dismissing Bozzio’s
complaint with prejudice. See Sharkey, 778 F.3d at 774.
CONCLUSION
The district court erred in dismissing the complaint, and
we cannot affirm on different grounds.
BOZZIO V. EMI GROUP 21
REVERSED AND REMANDED.